Calcutta High Court (Appellete Side)
Icici Lombard General Insurance ... vs Madhumita Mudi & Ors on 13 February, 2023
44
13.02.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 8 of 2014
with
CAN 2 of 2016 (CAN 9753 of 2016)
ICICI Lombard General Insurance Co. Ltd.
Vs.
Madhumita Mudi & Ors.
with
COT 33 of 2015
Smt. Madhumita Mudi & Anr.
Vs.
ICICI Lombard General Insurance Co. Ltd. & Anr.
Mr. Sayak Majumder
... For the appellant/Insurance Co. in FMA
8 of 2014 & respondent no.1/
Insurance Co. in COT 33 of 2015
Mr. Jayanta Kumar Mandal
... For the respondents/claimants in
FMA 8 of 2014 & Cross Appellants/
Claimants in COT 33 of 2015
This appeal is directed against the judgment and
award dated 6th June, 2013 passed by the learned Judge,
Motor Accident Claims Tribunal, 4th Court, Burdwan, in
connection with MAC Case No.22 of 2011/102 of 2011
whereby the learned Judge granted compensation to the
tune of Rs.6,49,230/-.
The claim petition was filed on account of death of
one Gagan Chandra Mudi in a motor accident happened
on 29th May, 2010 at about 1.00 p.m. at G.T. Road (NH-II)
in front of Jothram Library, while one Truck, bearing
registration no.WB-41/0048, with very high speed and
negligent manner, dashed the deceased from back side. As
a result, he sustained severe injuries on his person and
shifted to Burdwan Medical College and Hospital where he
was declared dead. At the time of accident, Gagan
Chandra Mudi was an Inspector attached to West Bengal
Food and Supply Department having salary of Rs.23,915/-
and aged about 56 years.
Owner did not contest the claim petition but the
ICICI Lombard General Insurance Company Limited
contested the case by filing written statement denying all
material averments of the claim petition contending, inter
alia, that it was a case where First Information Report was
lodged after one month of the accident and thereby delay
in lodging FIR created a doubt about the involvement of
the vehicle. Accordingly, it was prayed for dismissal of the
claim petition.
To prove the case, the claimants examined as
many as three witnesses, namely, Madhumita Mudi, the
wife of the deceased, as PW-1, one Rabindranath Pal as
PW-2 and one Abhisekh Chowdhury as PW-3.
PW-1 corroborated the entire contents of the claim
petition. According to her, immediately after accident he
came to know about the number of vehicle and went to
lodge FIR in the police but refused and thereafter she
lodged complaint before the Superintendent of Police but
no result was yielded. That is why one application under
Section 156(3) of Code of Criminal Procedure was filed
before the Court and ultimately investigation was started
treating the said application under Section 156(3) of the
Code of Criminal Procedure as FIR. She also stated that
one Rabindranath Pal (PW-2) informed her about the
number of the vehicle.
PW-2 claimed himself to be an eyewitness to the
accident. He stated that on the alleged date and time of
the accident, he was present on the spot and saw a truck,
bearing registration no.WB-41/0048, which caused the
accident due to rash and negligent driving. He further
stated that Gagan Chandra Mudi sustained severe injury
due to accident and he was declared dead in the hospital.
From the tone and tenor of the cross-examination, I find
that PW-2 who knew Madhumita Mudi for the first time on
29th May, 2010 when accident took place and he was the
person to inform the number of the vehicle to Madhumita
Mudi.
PW-3, one Lower Division Assistant, namely,
Abhisekh Chowdhury, came before the learned Tribunal
and proved salary certificate of Gagan Chandra Mudi. He
specifically stated that Gagan Chandra Mudi was posted in
the Department of Food and Supply in Accounts Section.
He proved the salary certificate for the months of April and
May, 2010, i.e., just prior to the accident.
On behalf of the Insurance Company, one
Sankarsan Sanyal, Legal Manager of ICICI Lombard
General Insurance Company Limited, was examined as
OPW-1, who asserted the policy number issued in favour
of Sk. Lal Mohammad (owner of the vehicle) by covering
the risk of the vehicle no. WB-41/0048. In cross-
examination, he has stated that the Insurance Company
did not file any case against the vehicle.
OPW-2, driver of the vehicle, Sk. Jahangir has
admitted the accident and it also appears from his
evidence that he left the place after accident. He
specifically stated that he was the driver of the vehicle no.
WB-41/0048.
OPW-3, owner of the vehicle, Sk. Lal Mahammad
also corroborated the evidence of OWP-2. He testified that
on 29th May, 2010 his vehicle met an accident and driver
was Sk. Jahangir (OPW-2). He stated that police seized the
vehicle under a seizure list.
In course of evidence, First Information Report,
charge sheet, seizure list, insurance policy, post-mortem
report, salary certificate were all admitted in evidence and
marked as exhibits.
Mr. Sayak Majumder, learned advocate, on behalf
of the appellant/Insurance Company has drawn my
attention to the evidence of PW-1 and PW-2 and tried to
make this Court understand that the vehicle no.WB-
41/0048 was planted in this case and nowhere from the
evidence it is seen that any person took note of the
number of the vehicle after the accident on the G.T. Road.
Mr. Majumder has also referred to the evidence of PW-1
and PW-2 and submitted that there is no evidence on
record that PW-2 ever informed the vehicle number to the
wife of the deceased. Thereby Mr. Majumder has
submitted that the claimants could not prove any accident
by the involvement of the vehicle no.WB-41/0048. Mr.
Majumder has further submitted that PW-2 was not
named as charge-sheeted witness which was submitted
after one year of the accident. Mr. Majumder has also
submitted that inordinate delay in filing FIR has created a
doubt regarding collusion between the owner and the
claimants.
Mr. Jayanta Kumar Mandal, learned advocate, on
behalf of the claimants/cross-appellants has referred to
the evidence of OPW-2 and OPW-3 who admitted the
accident. It is submitted by Mr. Mandal that both the
driver and the owner of the vehicle have corroborated the
accident alleged in this case and accidental death of
Gagan Chandra Mudi. Therefore, according to Mr. Mandal,
in absence of any cogent evidence with regard to collusion,
case of the claimants/cross-appellants cannot be thrown
out of Court.
However, I find merit in the submission of Mr.
Mandal with regard to evidence of OPW-2 and OPW-3, i.e.,
both the driver and owner of the offending vehicle came to
Court and admitted the accident happened on 29th May,
2010 on the G.T. Road under Burdwan Police Station.
It is not disputed that at the relevant point of time
the vehicle was duly insured with the ICICI Lombard
General Insurance Company Limited and it is also not
disputed that after filing of FIR, case was investigated and
charge sheet was submitted against the driver of the
vehicle. Therefore, by no stretch of imagination, I can hold
that vehicle no. WB-41/0048 was planted collusively. In
the aforesaid view of the matter, the claimants/cross-
appellants are entitled to compensation.
On behalf of the claimants, one cross-appeal, being
COT 33 of 2015, has been filed. Mr. Mandal has submitted
on behalf of the claimants/cross-appellants that the
learned Tribunal erred in taking multiplier 11 instead of 9
in terms of age of the deceased. He has further submitted
that the claimants/cross-appellants are also entitled to
15% of the income towards future prospect as well as
general damages of Rs.77,000/- pursuant to the principle
laid down in National Insurance Co. Ltd. v. Pranay Sethi
& Ors. reported in (2017) 16 SCC 680 = 2017 ACJ 2700.
Considering all the facts and circumstances
discussed above, I find it necessary to modify the award as
follows:-
Monthly Income (Rs.23915/- - Rs.130/-) Rs. 23,785/-
Annual Income (Rs.23,785/- x 12) Rs. 2,85,420/-
Add: Future prospect (@ 15%) Rs. 42,813/-
-------------------
Rs. 3,28,233/-
Less: 1/3rd Deduction (personal expenses) Rs. 1,09,411/-
----------------
Rs. 2,18,822/-
-----------------
Rs.19,69,398/-
Add: General Damages Rs. 77,000/-
-------------------
Total Compensation Rs.20,46,398/-
-------------------
For the reasons, it is seen that the
claimants/cross-appellants are entitled to the total
compensation to the tune of Rs.20,46,398/-.
It appears from the record that on behalf of the
appellant/Insurance Company, the entire amount
awarded by the learned Tribunal to the tune of
Rs.6,49,300/- was already deposited before the office of
the learned Registrar General of this Court.
Accordingly, the appellant/ ICICI Lombard General
Insurance Company Limited is directed to deposit the
enhanced amount of Rs.13,97,098/- (Rs.20,46,398/- -
Rs.6,49,300/-) along with interest @ 6% per annum from
the date of filing of the claim petition, i.e. on 5th May, 2011
till the actual deposit of the amount before the office of the
learned Registrar General of this Court, within six weeks
from the date of this order.
The claimants/cross-appellants are entitled to
withdraw the entire awarded amount with interest and
accrued interest, subject to payment of additional ad
valorem court fees on the amount of Rs.8,46,398/-
(Rs.20,46,398/- - Rs.12,00,000/-) before the learned
Tribunal.
The learned Registrar General is requested to
disburse the entire amount along with interest and
accrued interest to the claimants/cross-appellants in the
manner and proportion as mentioned in the judgment
passed by the learned Tribunal, on proper identification
and proof.
With the above observations, the appeal, being
FMA 8 of 2014 stands dismissed and the Cross-Appeal,
being COT 33 of 2015, stands allowed.
All pending applications, if there be any, stand
disposed of.
Records of the learned Tribunal along with a copy
of this order be transmitted back immediately.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance of
necessary formalities.
(Bibhas Ranjan De, J.)
